GOVERME
THU 5 RUG 93 09:11
PG.12
GOLF HOUSE HONG KONG CUNFIDENTIAL €48/10
From Attorney General's Chambers.....
Rcf94) in AGC LDT. 6014/280...
Tel. No.
867 4479.....
Date
4 August 1993.....
MEMO
Secretary for
To... Constitutional Affairs (Attn: Mr. D. Chin)
Your Ref....
dated
30.
Localisation of Laws
Carriage of Nuclear Material
The general problem raised by the Hong Kong (Legislative Powers) Order 1989 was discussed in an exchange between HKG and the FCO in October 1991 see HKG telno. 3223 of 14 October 1991 and Miss Shelagh Brooks' reply on 22 October to Dr. Harkin of HKD, now copied for ease of reference. That exchange shows that there is no dispute that the 1989 Order enables the Hong Kong legislature to repeal UK laws to the extent required in order to give effect to the Paris Convention and any amendments to it which apply to Hong Kong.
2.
The particular question raised by the FCO in telno. 733 of 2 August 1993 is whether the 1989 Order extends to the 1983 and 1986 Orders which were incidental to the 1972 Order and did not directly flow from any treaty. The simplest answer is given by the FCO adviser ie. that the repeal of the 1983 and 1986 Orders is "for connected purposes". If any amplification is needed, it can be based on the wording of the Hong Kong Act 1985 which refers to "such provision as appears to Her Majesty to be necessary or expedient in consequence of or in connection with section 1(1) of this Act" (ie. the surrender of sovereignty and jurisdiction over Hong Kong w.e.f. 1 July 1997). Localising the 1983 and 1986 Orders is undoubtedly both necessary and expedient in Hong Kong's terms.
3.
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to
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The language of the 1989 Order also supports a wide interpretation of the powers conferred. It says "to the extent required in order to give effect international agreement which applies to Hong Kong." This should be read as "to the extent required in the circumstances of Hong Kong" ie. not an objective, minimalist. test but a subjective test from Hong Kong's point of view.
4.
There is also the pragmatic argument that it would be most peculiar if Hong Kong could repeal the main 1972 Order but could not repeal
repeal the lesser, ancillary orders. The orders can properly be viewed as 3 single legislative package, and the powers conferred by the 1989 Order relate to the whole package.
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